### IN THE COURT OF APPEALS OF TENNESSEE AT JACKSON JAMES REED, ET AL 

### . v. JAMIE HAMILTON, ET UX 

### . Direct Appeal from the Chancery Court for Obion County No. 18,378 and No. 18,434 W. Michael Maloan, Chancellor

No. W1999-00440-COA-R3-CV - Decided May 4, 2000

This appeal arises from a dispute between neighboring landowners regarding whether there is an easement acr

oss the real prope

rty of Defe

ndants Jamie and Bonnie Hamilton for the benefit of Plaintiffs Hulon O. Warlick, III, James Reed, and Wayne Matthews. Mr. Warlick filed a complaint andMr. Reed and Mr. Matthews filed a similar complaint against the Hamiltons asking the trial court to declare the existenc e of such an easement. The court issued a number of orders in the Warlick and Reed /Matthews matters enjoining the Hamiltons from interfering with the easement and from obstructing or preventing Mr. Warlick, Mr. Reed, or Mr. Matthews from acces s ing their properties. The Hamiltons nevertheless performed a number o f acts in violation of these orders. Con seq uen tly, the trial court found the Hamiltons in civil contempt and assessed sanctions and damages against

them in the amount of $25,156.80, which is equal to the attorney’s fees incurred by Mr. Warlick, Mr. Reed, and Mr. Matthews. On appeal, the Hamiltons argue that the trial court was without authority to assess attorney’s fees ag ainst them

. Wehold that, under the circumstances of the case at bar,

the trial court ha

d the authority

to assess attor ney’s fees against the Hamiltons pursuant to section 29-9-105 of the Tennessee Code Annotated. We therefore affirm the ruling of the trial court.

Tenn. R. App. P. 3 Appeal as of Right; J udgment of the Chanc ery Court Affir

med; and Remanded

F ARMER , J., delivered the opinion of the court, in which H IGHERS and L ILLARD , JJ. joined.

T. Larry Edmondson, Nashville, Tennessee and Gregory D. Smith, Clarksville, Tennessee, for the appellants, Jamie Hamilton and wife, Bonnie Hamilton. James M. Glasgow, U

nion City, Tennesse

e, for the appell

ees, James Reed a

nd Wayne Matthew

s. John M. Miles, Union City, Tennessee, for the appellee, Hulon O. Warlick, III.

OPINION1 Mr. Warlick’s complaint did not include a request for attorney’s fees but did include a request for “such other, further and general relief as [he] may be entitled to under the ple adings and proof.”

2 The complain

t file d by Mr. Reed and Mr. Matthews also did not contain a request for attorney’s fees, but it did include a request for $10 0,000.00 in

punitive damages and “such further and general relief as they may show themselves entitled to at the hearing.”

3 Both of these petitions included a request for attorney’s fees.


### -2- Mr. Warlick is the owner of a piece of real property located immediately south of and adjacent to apiece of real property owned by the Hamiltons. Mr. Reed and Mr. Matthews are the
owners of a pie ce of real property that is located south of both Mr. Warlick’s property and the Hamiltons’ property. There is a field roa d on the Hamiltons’ p roperty wh

ich serves as the

sole means of ingress and egress to and from the Warlick and the Reed/Matthews properties.

In November of 1994, Mr. Warlick filed a complaint against the Hamiltons asking the trial court to declare that there is an easement across the Hamiltons’ property and seeki ng a temporary order restraining the Hamiltons from interfering, obs tructin g, or preventing him from using the easement in order to gain acces s to his propert y. 1 Mr. Reed and Mr. Matthews filed a similar complaint against the Hamiltons in December of 1994. 2 The trial court granted the t emporary restraining orders requeste d by Mr. Warli

ck, Mr. Reed, and

Mr. Matthews. Mr. R

eed subsequently filed a petition alleging that on December 4, 1994, he had attempted to g ain access to his p

roperty but was prevente

d from doing so be

cause the cable gate at the entrance of the easement across the Hamiltons’ property was locked. Consequently, Mr. Ree d requested in the petition that the Hamiltons be required to show cause why they are not in contempt of court and that they further be required to pay his attorney’s fees. Afte r a hearingon Mr. Reed’s petition, the court did not find the Hamiltons in contempt, but instead issued a temporary injunction requiring the Hamiltons to furnish Mr. Reed and Mr. Matthews with a key to the cabl e gate and prohibiting the Hamiltons from interfering with their

use of the easement. In November of 1997, Mr. Warlick and Mr. Reed filed separate petitions alleging that the Hamiltons were in contempt of court because they had performed
a number of acts with the intent to prevent Mr. Warlick, Mr. Reed, and Mr. Matthews from using the field road and to deprive them of access to their properties, including (1) moving the field road, (2) grading the field road, (3)r emoving water drains or culverts from the field road, (4) chisel ploughing the field road, (5) placing posts and a barbed wire fence in the middle of the field road, (6) digging tren

ches or ditches a

cross the field road, and (7) causing to be arrested an employee of Mr. Warlick who attempted to use the field road. 3 After a hearing on the matter, the trial court found that the Hamiltons had w

illfully viola

ted its previous orders and stated that, in a s ubsequent hearing, it would co nsider argument regarding appropriate punishment, requests for attorne y’s fees, and pro o f of damages. At the con clusion of this subsequent hearing, the court found that Mr. Warlick, Mr. Reed, and Mr. Matthews hadnot sustained any actual damage

s as a result of the

Hamiltons’ action

s, took the matter of appropriate punishment under advisement, and requested that counsel for Mr. Warlick, Mr. Reed, and Mr. Matthews submit updated aff i davits documenting their fees and4 The court divided these sanctions and damages $8,215.00 to Mr. Warlick and $16,941.80 to Mr. Reed and Mr. Matthews.

5 Section 29-9-102 p

rovides as follows :
The power of the seve

ral courts to issue

att achments , and inflict punishments for contemptsof court, shall not be constru ed to exten d to any except the following
cases: (1) The willful misbehavior of any person in

the presence of the court, or so near thereto as to obstruct the administration of justice. (2) The willful misbehav ior of any of the of ficers of said courts, in their of

ficial transact

ions. (3) The willful disobedience or resistance of any officer

of the said courts, party, jur or, witness, or any other person, to any lawful writ, process, or

der, rule, decr

ee, or command of

said courts. (4) Abuse of, or unlawful interf eren ce with, the process or proceedings of th

e court. 

### -3- expenses. The court thenentered an ord er (1 ) dec lar ing a n eas eme nt a cros s th e Ham ilt ons ’ pr ope rty, (2) permanently enjoining the Hamiltons from disturbing, obstructing , hindering, or changing the easement and from preventing or interfering with the use of the easement by Mr. Warlick, Mr. Reed,
or Mr. Matthews, (3) finding that the Hamiltons were in civil contempt of its previous orders, and (4) imposing sanction

s and damages f

or contemp

t agai nst the Hamiltons in the amount of $25,156.80, which is equal to the amount of attorney’s fees incurred by Mr. Warlick, Mr. Reed, and Mr. Matthews. 4 This appeal by the Hamiltons followed.

On appeal, the Hami

ltons challenge

the trial court’s

authority to

assess $25,156.80

in sanctions and damages ag ainst them after having previously determined that Mr. Warlick, Mr. Reed, andMr. Matthews had n

ot sustained any

actual damage

s as a result of the Hamiltons’ conduct. To the extent that

this issue involves q

uestions of fact,

our review of the

trial court’s rul

ing is de novo witha presumption of correctness. See T.R.A.P. 13(d). Accordingly, we may not reverse the court’s factual findings unless they are contrary to the preponderance of the evidence. See, e.g., Randolph
v. Randolph , 937 S.W.2d 815, 819 (Tenn. 1996); T.R.A.P. 13(d). With respect to the court’s legal conclusions,

however, our re

view is de novo with no presumption of correctness. See, e.g., Bell ex rel. Snyder v. Icard, Me

rrill, Cullis, Timm, Furen a nd Ginsburg, P.A. , 986 S .W.2d 550, 554 (Tenn. 1999); T.R.A.P. 13(d).

The courts of Ten

nessee have inhe

rent authority to

order punishment f

or acts of contempt. See Black v. Blount, 938 S.W.2d 394, 397 (Tenn. 1996); Thigpen v. Thigpen , 874 S.W.2d 51, 53 (Tenn. Ct. App. 1993). This a uthority is limited, ho

wever, in that the

courts may onlypunish as contemptuous the types of a cts de scribed in section 29-9-102 of the Tennessee Code Annotated. 5(5) Willfully c onversing with juro rs in relation to the

merits of the cause in

the tria l of which they ar

e engaged, or oth

erwise tampering with the

m. (6) Any other act or omission declared a contempt by law. Tenn. Code Ann. § 29-9-102 (1980).



### -4- See Black , 938 S.W.2d at 397- 98; State v. Turner , 914 S.W.2d 951, 955 (Tenn. Crim. App. 1995). A contempt may be either civil in nature or criminal in nature. See Wilson v. Wilson , 984 S.W.2d 898, 906 (Tenn . 1998)(Birch, J., dissenting); Black , 938 S.W.2d at 398; Turner , 914 S.W.2d at 954. Civil contempt occurs when a person does not comply with a court order and an action is brought by a private party to enforce his or her rights under t he order that has been violated. See Black , 938 S.W.2d at 398; Robinson v. Air Draulics Eng’g Co. , 377 S.W.2d 908, 912 (Tenn. 1964); Turner , 914 S.W.2dat 955. Punishment fo r civil contempt is d

esigned to coerc

e compliance with the court’s order and is imposed at the insistence and for the benefit of the private party who has suffered a violation of his or her rights. See Black , 938 S.W.2d at 398; Turner , 914 S.W.2d at 955; Sherrod v. Wix , 849 S.W.2d 780, 786 n.4 (Tenn. Ct. App. 1992). Criminal contempt, on the other hand, occurs when the dignity and authority of the court has been offended. See Black , 938 S.W.2d at 398; Turner , 914 S.W.2d at 955; Sherrod , 849 S .W.2d at 786 n.4. Punishment for criminal contempt is designed to vindicate the court’s authority and maintain the integrity of its orders and thus is generally punitive rather than remedial in nature. See Wilson , 984 S.W.2d at 904; State v. Winningham , 958 S.W.2d 740, 746 ( Tenn. 1997); Black , 938 S.W.2d at 398; Turner , 914 S.W.2d at 955; Thigpen , 874 S.W.2d at 53.
In the case at bar, the Hamiltons concede that the trial court had the powe r to hold them in contempt of court but maintain that the court exceeded its statutory authority with respect to the punishmentthat was imposed upon them. Section 29-9-103 of the Tennessee Code Annotated se

ts forth the genera

l rule regarding

punishment for con

tempt, as follows: (a) The punishment for contempt may be by fine or by imprisonment, or both. (b) Where no t otherwise specially provided, the circuit, chancery , and appellate courts are limited to a fine of fifty dollars ($50.00), and imprisonment not exceeding ten (10) days, and, except as provided in § 29-9-108, all other courts are limited to a fine of ten dollars ($10.00).

Tenn. Code Ann. § 29-9-103 (Supp. 1999). The trialcourt in the instan t case is a chancery court and thus was not authorized by section 29-9-103 to impose a fine fo r contempt agai

nst the Hamiltons in
excess of $50.00. As state d above, the trial

court ordered th

e Hamiltons to pay “sanctions and damages” in the amount of $25,156.80, an amount obviously in excess of $50.00. Mr. Warlick, Mr. Reed, and Mr. Matthew contend, however, that the trial court was authorized to order the Hamiltons6 Unpublished opinions are generally considered persuasive authority. Supreme Court Rule 4(H)(1) as amended November 1, 1999. 

### -5- to pay $25,156.80 in “sanctions and damages” by section 29-9-105 of the Tennessee Code Annotated, which

provides as follow

s:
If the contempt consists in the performance of a forbidden act, the person may be imprisoned until the act is rectified by placing matters andperson in statu[s] quo, or by the pa

yment of dam

ages. Tenn. Code Ann. § 29-9-105 (1980).

We are aware of no reported cases in Tennessee specifica lly addressingwhether section 29-9- 105 authorizes a court to award attorney’s fees in cases of c ivil contempt . Howev er, this Court considered

this exact issue in the

unreported cas

e Keeley v. Massey , No. 02A01-9307-CH-00159, 1994 WL 59556 (Tenn. Ct. App. Feb. 28, 1994). 6 In Keeley , a post-divorce domestic relations case, the trial court found that Mr. Massey was in willful civil contempt of an order previously entered by the court regarding Mr. Massey’s visitations with the parties’ minor sons. See id. at *1. The court held, however, that Mr

. Massey co

uld purge himself

of th is c ontempt by precisely following the court’s future visitation orders and by pay ing $1,500.00 of M

s. Keeley’s attorney’ s fees. See id. On appeal, Mr. Massey

argued that the trial court lacked the authority to assess a portion of Ms. Keeley’s
a ttorney’s fees against him. See id. This Court upheld the award of attorn

ey’s fees , noting tha t damages awarded under section 29-9-105 are compensatory in nature, that

the appropriate measure of damages under section 29-9-105 is actual loss, and that damages under section 29-9-105 may include attorney’s fees. See id. at *5 (citi ng In re Crabtree a/k/a West K noxville Inv. Co. , 60 B.R. 147, 150 (Bankr. E.D. Tenn. 1986)(“An award of attorney ’s fees and e xpense s to a successful movant in a civil contempt proceedingmay be appropriate.”)). Similarly, in the unr eported case of Kuykendall

v. Latham , 1991 WL 10178 (Tenn. Ct. App. Feb. 4, 1991), the trial court enjoined the Lathams from engaging in certain activities that would violate a covenant not to c ompete that the Lathams had entered into with Ms. Kuykendall. See id. at *1. Ms. Kuykendall subsequently filed
a motion alleging that the Lathams had violated the injunction and t

hus were in conte

mpt of court. See id. After hearing the motion, the trial court agreed that the La thams were in contempt and ordered them to pay Ms

. Kuykendall $1,750.00 in damages and $350.00 in attorney ’s fees. See id. On appeal, this Cou

rt affirmed the r

uling of the tria

l court, stating a

s follows:
First, the Lathams a

ssert that th

e court erred in awarding Kuykendall her attorney fees because, in the absence of a statutory provision or contra ctual agreement

providing for attorney

fees, the award is not a proper element of damages andgoes against the public policy of this State. See Goings v. Aetna Ca sualty and Surety Company , 491 S.W.2d 847 (Tenn. App. 1972). However, it has be en held that an award of atto

rney fees may be appr

opriate to a succ

essful movant i n a civil contempt proceeding. See TWM Mfg. Co. v. Dura Corp. , 722 F.2d 1261, 127 3 (6th Cir. 1983), cert. denied 479 U.S. 8 52 (1986). Although there is no contractual

### -6-

agr eement

or statutory provision which addresses attorney fees in a contem

p t proceeding, the trial court is v ested with much disc

retion in the allowance of

attorney fees. Threadgill v. Thread gill , 740 S.W.2d 419 (Tenn. App. 1987). Likewise, the appellate court will not inter

fere with the trial court’s award of attorney fees except upon a showing that the trial court abused its discretion. Id. We do not find thatthe trial court abuse

d its discretion and

we affirm the aw

ard of attorney

fees.
Id. at *2.

Consistent with the opinions of t h is Court i n Keeley and Kuykendall , we agree with Mr. Warlick, Mr. Reed, and Mr. Matthews that the trial court had the authority to assess their attorney’s fees against the Ham

iltons pursuant to se

ction 29-9-105. Al

most immedia

tel y following the commencement

of the case at bar, the Hamiltons willfully violated the temporary restraining or ders issued by the trial court. The Hamiltons’ acts of contempt continued throughout the pendency of the case, as they willfully violated the temporary injunction subsequently entered by the trial court. As
a direct result of the Hamiltons’ actions, Mr. Warlick, Mr. Reed, and Mr. Matthews were forced to incur attorney’s fees associated with the filing of petitions for contempt and hearings subsequently held thereon. As noted by

this Court in Keeley , damages under section 29-9-105 are compensatory in nature. The trial court’s award of attorney’s fees ser vedto compensate Mr. Warlick, Mr. Reed, andMr. Matthews for the loss that they sustained as a res ult of the wrongful and contemptuous actions of the Hamiltons. Under such circumstances, we think that the court properly concluded that the attorney’s fees incurred by Mr. Warlick, Mr. Reed, and Mr. Matthews are among the types of damages that are compensable under section 29-9-10 5. We th erefore affirm the order of the trial court imposing “sancti

ons and damages

” for conte

mpt against

the Hamiltons in the amount of $25,156.80.

Based on the foregoin

g, the ruling of

the trial court is

affirmed. Costs on appeal are assessed agai nst the Ham ilt ons , fo r wh ich exe cut ion may i ssu e ifnece ssa ry.